Fordham Law Review
Volume 51 | Issue 3
Article 1
1982
Barristers and Judges in England Today
Rt. Hon. Sir Robert Megarry
Recommended Citation
Rt. Hon. Sir Robert Megarry, Barristers and Judges in England Today, 51 Fordham L. Rev. 387 (1982).
Available at: http://ir.lawnet.fordham.edu/flr/vol51/iss3/1
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BARRISTERS AND JUDGES
IN ENGLAND TODAY*
RT. HON. SIR ROBERT MEGARRY**
t is indeed an honour to be invited to deliver the Twelfth Annual
John F. Sonnett lecture at Fordham University. It is also somewhat intimidating to be following in the footsteps of my eleven highly
distinguished predecessors, including, as they do, Chief Justices of the
United States, of England and of Ireland. At one stage I began to fear
that I would be struck dumb; but I am a lawyer, and I was comforted
by the well-known rule of medical diagnosis in your country. This is
that you can always tell the state of a lawyer's health by looking at his
mouth: if it is shut, he is dead. I hope that I am not.
The careers of my predecessors in office, and that of John F. Sonnett himself, suggested that my subjectshould be professional rather
than academic in nature, and so I shall speak of barristers and judges
in England today. The main problem, of course, is not what to say but
what to omit; for the subject is vast. The question that I ask and shall
seek to answer is this: With all the changes in society and social
attitudes since 1945, how are the Bar and the judiciary in England
faring, both individually and in relation to each other? From time to
time on your side of the Atlantic there are flattering references to the
high general standards of advocacy in England; but are they deserved
today? I propose, therefore, to attempt something of a progress report
on the forensic process in England and Wales. Scotland and Northern
Ireland have their own separate legal systems and legal professions,
and so I shall say nothing of them. Limitations of time mean that I
must generalize, so that to most of what I say there will be unspoken
exceptions and qualifications; and my emphasis will be on the Bar.
I must begin with a short prelude on scale. By comparison with the
United States, everything in England and Wales is so small. My
figures are very approximate, for in such matters detail tends to
stultify. The area of England and Wales is less than 60,000 square
miles, in contrast with your 3.5 million; and our population is not
quite 50 million, as against your figure of over 225 million. Thus
although our population is some 22 percent of the size of yours, it is
crammed into less than two per cent of your area. Moreover, very few
live more than 250 miles from London, where there is a heavy concentration of lawyers. Our legal profession is also relatively very small.
We have some 500 judges for a population of nearly fifty million. The
*Copyright 1982 by R.E. Megarry.
** The Vice-Chancellor of the Supreme
Court of England and Wales. This
article is a revised version of the Twelfth Annual John F. Sonnett Memorial Lecture,
delivered by the Vice-Chancellor at the Fordham University School of Law on April
13, 1982.
388
FORDHAM LAW REVIEW
[Vol. 51
judges with unlimited jurisdiction (comprising the High Court, Court
of Appeal and House of Lords) number a little over 100; and there are
less than 350 circuit judges, exercising a limited jurisdiction. If one
adds a number of lawyers whom we do not call judges but who
exercise full-time judicial functions and would probably be called
judges in your country, there is a total of 500, or not much more. This
compares with some 30,000 judges in the United States. Then we have
some 4,500 practising barristers and about 45,000 practising solicitors,
so that, including the judges, there are some 50,000 lawyers for nearly
50 million people. I do not know how many lawyers there are in the
United States. I have heard it estimated that before very long there
will be nearly a million of them; and I know that in 1979 there were
over a quarter of a million members of the American Bar Association.
In the year 1978, I believe that some 36,500 new lawyers were admitted to the various Bars in the United States; and this alone is equal to
nearly three-quarters of the entire legal profession in England and
Wales.
The accuracy of the figures does not matter much. What does
matter is the broad effect of the comparison. Nobody in a vast country
such as yours can hope to understand how the English legal profession
works without appreciating to the full how small and compact it is by
comparison with yours. Even so, it is now far larger than it was in
1939 or 1945. Since then, in broad terms, the profession has doubled
in numbers; and in some respects it has more than doubled. The great
surge in crime and divorce, and the extensive provision of legal aid,
have seen to that. So how are the standards of the profession faring?
Has more meant worse? Any answer must be very much a matter of
impression; but I think that the general view is that for the most part,
with some unhappy exceptions, standards have been maintained. Certainly I would assert this for the Chancery Bar, which I know best,
though I believe that there are fields in which my common-law brethren are less happy.
Let me assume this to be so, and let me address myself to the Bar.
Why is this the case? How is it done? In attempting to answer these
questions I must express my thanks to those who founded this series of
lectures for forcing me to attempt some analysis of what it is all too
easy to assume and take for granted. After due reflection, I can put
my answer in a single but not very short sentence. From the outset of
his career at the English Bar, a barrister finds himself enveloped in a
system of continuous professional assessment, correction and encouragement, and this directs and sustains his career in accordance with
the established standards of the Bar.
That is my proposition. It rests on six major factors. Let me list
them, before turning to look briefly at each of them. They are: (1) the
pupillage system; (2) the chambers system; (3) the Inns of Court; (4)
the institution of silk; (5) the influence of the Bench; and (6) the
judgment of solicitors. You will observe that I have not included legal
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389
education. In the course of teaching much law and some professional
skills, legal education contributes something, and there have been
many improvements over the last twenty years; but I cannot see it as
being a major factor in my thesis. I do not suggest that the six factors
that I list form part of any overall plan or design. Each grew up
separately, and each has been refined and improved from time to
time; yet however haphazard, the team works. In a word, it is very
English. Let me take each of the six heads in turn.
1. The Pupillage System
Nobody may practise at the English Bar without first becoming a
pupil of an approved practising barrister for a year or more. A rule of
this sort had been customary for very many years; but not until 1959
was it made binding. In order to ensure that the pupil-master is
sufficiently experienced, that he has a good reputation, and that he
has enough work to make the pupillage valuable to the pupil, the
pupil-master must have been continuously in practice at the English
Bar for at least five years, and he must be on his Inn's list of approved
pupil-masters. He must also be a junior (that is, a barrister, of whatever age, who is not a Queen's Counsel), so that he will have work of
the type that the pupil will hope to do when his pupillage ends.
The pupil has a seat in his pupil-master's chambers, and he tries his
hand at any or all of his pupil-master's work. He goes to court with
him, makes notes of the evidence and arguments, fetches textbooks
and law reports when a new point suddenly emerges, and generally
assists his pupil-master. In chambers, he drafts opinions and pleadings, makes notes on points of law and practice for his master, and
attends conferences with solicitors and clients. A valuable part of this
education lies in the pupil seeing how far his master alters or rejects
what the pupil has drafted; and his master will explain to him why
this has been done. Another valuable part of his education is learning
what his master, and others in chambers, regard as being proper to
do, and how best to do it.
For the first six months of his pupillage the pupil, despite being a
barrister, is not allowed to address a court; but after that, his pupilmaster, if he thinks him fit, may give him some relatively simple work
to do, such as making a plea in mitigation of sentence in a minor case,
or appearing before a Master in chambers on some small procedural
point. The pupil may also, under the guidance of his master, accept
work on his own account, if he is fortunate enough to get any. The
essence of the pupillage, however, is for the pupil to see everything
from the inside, living in the highly professional atmosphere of barristers' chambers, and seeing how experienced and reputable advocates
behave. Until some ten years ago the pupil paid his pupil-master a
customary fee of 100 guineas (i.e. £105). This had been unchanged
since it was first fixed in about 1780; but now there is no payment,
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[Vol. 51
either by or to the pupil. There is a system of scholarships, bursaries
and loans to help in meeting the financial problems of the pupillage
year.
A pupillage is wonderfully revealing. Within a few months the
pupil-master will know whether or not the pupil has any real aptitude
for the Bar. The pupil's academic record may be outstanding or
modest or dismal; but success at the Bar depends upon many other
factors, and these begin to emerge during the pupillage. The pupil,
too, knows that his future largely depends upon his performance
during his pupillage. The Bar is competitive and crowded, and when
a pupillage ends, the pupil will have to find a set of chambers willing
to accept him as a member. If he has shown outstanding qualities, his
pupil-master's chambers, however pressed for space, will somehow
find room for him; for all concerned will do everything possible to
keep up the standards of their own chambers. If the pupil is merely
good, and there is no room for him in his pupil-master's chambers, the
master will at least speak well of him when other chambers enquire.
But a pupil who has been found to be lazy, stupid, self-important,
untrustworthy or a dozen other things, will have small prospects of
obtaining a seat in any save the most dreary of chambers. Careers at
the Bar begin with the pupillage; and some end there. Yet a pupillage
is not merely a time of trial; it is an essential part of the training for
those who will succeed at the Bar. The beginner must be caught at the
outset of his career and set upon the right lines. Early habits and
attitudes tend to endure.
2. The Chambers System
No barrister may practise at the Bar unless he does so from a set of
chambers. Physically, chambers consist of a number of rooms containing other barristers (usually from about eight to twenty of them, some
sharing rooms) and a barristers' clerk, with typists and other staff.
The rent and other expenses are shared by all the barristers in the
chambers. In London, where about three-quarters of the barristers
practise, nearly all the chambers are in one of the four Inns of Court.
The clerk is a sort of business manager for each barrister in his
chambers, and his functions include fixing and collecting their fees.
An essential difference between barristers' chambers and solicitors'
offices is that every barrister is independent, and practises on his own.
He is not in partnership with the other members of chambers or
anyone else; partnerships at the Bar are prohibited. Often two members of the same chambers will be on the opposite sides in a case,
assailing each other in court with all the added zest of being stablemates, and often close personal friends. This is particularly the case in
some of the specialist chambers. Apart from the broad division between Chancery chambers and common-law chambers, there are sets
of chambers that specialise in company law, or taxation, or landlord
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BARRISTERS AND JUDGES
and tenant, and so on. In these chambers, the chances of opposing
solicitors each briefing a different member of the same chambers is
high. In such cases, the clerk of the chambers is a happy man; for most
clerks work on the basis of a percentage of the earnings of each of his
barristers.
Despite these prospects of diversity, there is a strong corporate spirit
in a set of chambers. One of the senior members will be the Head of
Chambers, responsible for paying the rent and other outgoings, and
for collecting (through the clerk) a fair share from each of the other
members of chambers. It is to the Head of Chambers that junior
members will turn for advice and assistance when confronted with
some problem of ethics or propriety. It is the Head of Chambers who
will utter warning words to any member of chambers whose conduct
appears to require them. He shares with all the other members of
chambers a common concern that the chambers should maintain their
high standing in the eyes of the Bench, the rest of the Bar, and
solicitors. Standards can be maintained much more readily by personal and informal words within a small unit than by an impersonal
and formal disciplinary process, a process which must of necessity be
reserved for major delinquencies and cannot so well supply a warning
word in time.
There is also a strong tradition at the Bar for senior members to help
beginners; and this flourishes in the atmosphere of chambers. It is in
chambers that beginners get started at the Bar. Sometimes a busy and
overpressed practitioner will divert some small work to a beginner in
chambers whom he trusts; and there is also a process known as "devilling." The overworked practitioner will ask a not-so-busy beginner to
draft an opinion or statement of claim for him, or to write a note on
the law, much as the beginner did when he was a pupil. The difference is that the devil will usually be paid for his work. If the work is
good and can be used without much alteration, he may expect to get
at least half the fee received by the principal. As with a pupillage, this
process is highly educational; and a devil may work for any or all in
his set of chambers, or, indeed, outside.
3. The Inns of Court
The four Inns of Court are Lincoln's Inn, Inner Temple, Middle
Temple and Gray's Inn, to put them in their traditional order. They
are as closely similar in substance as they are pleasantly diverse in
detail. They are all close to the Royal Courts of Justice in London and
to each other. Nobody can be called to the Bar without joining one of
them. Indeed, it is the Inns alone, and not the courts, that can call a
person to the Bar; and it is the Inns alone that, subject to an appeal to
the judges as Visitors to the Inns, can suspend or disbar a barrister.
Each Inn is managed by its Benchers, or, more formally, "Masters of
the Bench." These consist of all the judges of the High Court (and
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[Vol. 51
above) who belong to the Inn, some forty of the senior Queen's
Counsel of the Inn, and perhaps ten of the senior juniors. There are
also a number of distinguished persons, some of them not members of
the Inn, or indeed, lawyers, who have been elected honorary Benchers. I give the numbers of my own Inn, Lincoln's Inn, the Inn in
which Thomas More held office over 450 years ago. Today we have
about 130 Benchers, including many who have retired and twenty
honorary Benchers. The main body of active Benchers is about sixty or
seventy strong.
One essential of being a Bencher is to recognise that within the Inn
all Benchers are treated as being equal, regardless of any judicial or
other office that they hold. The one exception is the Treasurer, who
during his year of office is the Head of the Inn. This rule of equality is
good for the judges, doing much to prevent them from becoming too
pompous and self-important. Much of the work of the Inn is done by
standing committees. Nobody would be surprised to find a junior
presiding over a committee in which a proposition that is strongly
supported by a Lord Justice, a High Court judge and a junior is being
opposed by three Queen's Counsel and a Master, and is ultimately
defeated by a large majority. There is also easy conversation between
all Benchers round the lunch table (most Benchers sitting or appearing
in the Law Courts lunch in their Inn), though counsel who are
appearing before a judge who is a fellow-Bencher will usually avoid
sitting next to him. This easy mixing does much to avoid the "them"
and "us" syndrome. In addition to being undeniably pleasant, it also
plays a real part in the formation and maintenance of professional
standards, and in diminishing the avoidable asperities of conflict in
the courtroom. It was Tranio who advised:
Do as adversaries do in law
Strive mightly, but eat and drink as friends.
The civilising effect of habitual communal lunching is not, of
course, confined to Benchers, but applies to all members of the Inn.
Any temptation to indulge in sharp practice becomes less acute if the
victims will be those whom you have met, and will meet, at the lunch
table of your Inn. In addition, the hope of becoming a Bencher in due
time plays its part, even if only subconsciously; for election as a
Bencher is by the Benchers, and none save those of good repute will be
elected.
4. The Institution of Silk
Taking silk is indeed an important step in a career at the English
Bar. Norman Birkett, who became Sir Norman, and then Lord
Birkett, once told me that he always regarded it as the most important
and pleasurable step of all, outstripping appointment as a judge or
promotion. Out of a practising Bar of some 4,500, about ten per cent
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are silks, or "Queen's Counsel". The term "silk" comes from the gown.
When appointed a Queen's Counsel you become entitled to wear a silk
gown in place of the cotton gown of juniors, and you wear a tailcoat
of a particular design instead of an ordinary jacket. On formal occasions (and they are few), you wear knee breeches and a wig with long
flaps on each side, like a bloodhound's ears ( a "full bottomed wig"),
in place of the short wig that you wear on ordinary occasions, and
juniors wear on all occasions. You also put "Q.C." after your name;
and this is known, both inside the law and out, as an official recognition of your high standing as counsel. Despite the name, today there is
no special position for Queen's Counsel in relation to working for the
Crown.
The effect of becoming a Queen's Counsel is that you have to give
up doing some of the less important kinds of work, leaving them for
juniors, and you expect to spend your time on the more important and
difficult cases. Broadly, you will be paid more money for doing less
work, though it will be work of greater responsibility. Some juniors
come to accept that silk is beyond their reach, while others hesitate to
accept the responsibility, preferring to be "led" by a Queen's Counsel
in the important cases. Yet the great majority of juniors hope to reach
the plateau of silk, and reach it as early in their careers as they safely
can. Needless to say, nobody has any prospect of being given silk
unless he is of good repute.
Thie process of taking silk begins with an application to the Lord
Chancellor, made by December 31 in any year. It is usually futile to
apply for silk until you have been in practice for at least ten years;
fifteen or twenty years is more normal. With your application you
send details of your career and your earnings at the Bar, and you
name two High Court judges as referees. The referees will in due
course send the Lord Chancellor their views on your abilities as an
advocate, and your conduct and repute; and they will be very frank.
Usually the views of 'ther judges will be available as well.
The Lord Chancel nr then holds a meeting to consider the list of
applicants, summoning the four Heads of Division, namely, the Lord
Chief Justice (for the Queen's Bench Division), the Master of the Rolls
(for the Court of Appeal), the President (for the Family Division), and
the Vice-Chancellor (for the Chancery Division). All of these are, of
course, practising judges, sitting every day in court. The Lord Chancellor himself is no mere Minister of Justice, but is a working judge
who often sits as such, presiding over the House of Lords for the
hearing of appeals. Among those at the meeting, there is likely to be at
least one with a firsthand knowledge of each applicant for silk; and all
will know the judges who have expressed their views about the applicants. There will be a frank exchange of opinions, particularly about
those thought to be marginal, and ultimately the Lord Chancellor will
decide upon a list of the successful. In recent years, the list has tended
to include not much more than a quarter of those who have applied.
FORDHAM LAW REVIEW
[Vol. 51
The list is now much longer than it once was. In 1956 I was one
among eleven, whereas today there are a little over fifty each year.
But even this is very different from Canada, where in a single year one
Province alone may create double our number for a population less
than one-sixth our size.
In England, the institution of silk is thus vigilantly guarded. Great
care is*taken to ensure that, as far as possible, every silk is truly silkworthy. The list will often include one or two who are not practising
barristers, such as a distinguished academic lawyer, or the holder of
some important governmental legal position; but all the others will be
appointed on purely professional grounds. Yet despite every care,
there will be occasional mistakes. One New York lawyer visiting the
Law Courts in London heard a dreary and incompetent lawyer addressing the court. On being told that the advocate was a Queen's
Counsel, the American said: "Now I know why you say 'God save the
Queen.' "
As you might expect, there are some pleasant formalities when new
silks are appointed. Each year, the list of the successful is published
just before Easter; and some ten days later, on the first day of the next
term, the new silks will put on their formal dress and be sworn in
before the Lord Chancellor at the House of Lords. They will then
come to the Law Courts to be "called within the Bar" by each of the
Heads of Division; for silks sit in the front row in court. Between the
front row and the second row, where juniors sit, there is a notional
"Bar," represented in many of the courtrooms by a little wooden gate
at each side of counsel's rows. When the new silks come to my court, I
interrupt the case that I am hearing, and say to the first of the new
silks: "John Arthur Smith" (or whatever his name is), "Her Majesty
having been pleased to appoint you one of her counsel learned in the
law, you will take your seat within the Bar accordingly." Mr. Smith
will then advance through the little gate, stand in the middle of the
front row, bow to me, to the other silks and to the juniors, and then sit
down. Whereupon I say: "Mr. Smith, do you move?" He then rises,
bows to me (which is the courteous way of saying "No, I have no
motions to move"), and then leaves the court. E da capo al fine. *
There are, of course, variations. When asked: "Mr. Smith, do you
move?", one obese new silk replied: "With difficulty, my Lord."
Whether he rivalled Chief Justice Taft, I do not know; at times Taft
weighed well over 300 pounds. Mr. Justice Brewer once reported, as
an instance of Taft's innate courtesy, that he had seen him give up his
seat in a street car to three ladies. When the future Lord Morton of
Henryton took silk, Lord Justice Scrutton, who shared Morton's love
of the golf course, was presiding over a Court of Appeal before which
Morton had made the requisite three bows. As Morton was leaving the
court, Scrutton called out "Fore," by way of friendly greeting; but
Morton heard it as "Four," and returned to make an extra bow.
* "And this is repeated until the end."
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BARRISTERS AND JUDGES
5. The Influence of the Bench
The influence of the Bench is twofold; for the Bench is both a goal
and a guardian. It is a goal in that most practising barristers-not all,
but the great majority-hope that one day they will be offered a seat
on the High Court Bench. Such an offer will be made only to those of
the highest professional standing and integrity. The attractions are
various. The work, though demanding, is interesting and important.
Although there are now seventy-seven High Court judges in place of
the twenty-eight of 1939, their standing in the community remains
very high. They are always knighted on appointment, so that Mr.
John Smith becomes "Sir John Smith" and his wife "Lady Smith," a
feature not be be ignored. The salary is much less than earnings at the
Bar (when I was appointed it meant a reduction to about one-third),
but there is an assured income, and a pension which can be taken after
fifteen years service. The salary today is about $75,000; but few are
appointed until they are over fifty, when they have passed the worst
financial stresses of educating their children. (The youngest appointments to the High Court Bench this century were the future Lord
Hodson and the future Lord Devlin, each appointed when 42; but
they were exceptional). To those in their mid-fifties, wondering how
long they will be able to maintain their full vigour as advocates and
withstand the competition of younger rivals, and lacking any partners
to sustain them, a seat on the Bench has obvious attractions. They will
bear in mind that an offer, once rejected, is unlikely to be repeated,
and that with a compulsory retiring age of seventy-five, and with
fifteen years of service required to qualify for a full pension, as the age
of sixty approaches and is passed the offer of an appointment will
become less and less likely.
The process of appointment is simple enough. The appointment is
made by the Queen on the advice of the Lord Chancellor, after he has
made such consultations as he thinks fit. These consultations always
include the Heads of Division, much as on the appointment of silks,
though on a more intensive scale. The sole criterion is to find the most
suitable man or woman for the job. Politics, though once a factor,
have ceased to play any real part in appointments to the Bench. The
time of the change may be pinpointed. For a very long time the
Attorney-General of the day was regarded as having a strong claim to
the Lord Chief Justiceship, when it fell vacant. Yet when Viscount
Caldecote, a former Attorney-General, resigned the Chief Justiceship
on January 21, 1946, while a Labour government was in office, the
new Chief Justice was not the Attorney-General but was Lord Goddard, a Law Lord with no more than a trace of politics in his youth,
and that not on the Labour side. When he resigned in 1956, Lord
Justice Parker took his place. In 1971 he was succeeded by Lord
Justice Widgery, who as Lord Widgery, the Lord Chief Justice, delivered the John F. Sonnett Lecture in 1974. In 1980, he was succeeded
FORDHAM LAW REVIEW
[Vol. 51
by Lord Lane, a Law Lord. All these were non-political career lawyers; and in each case the Conservative government that was in power
at the time followed the lead given by the Labour government in
1946.
This non-political attitude has percolated downwards. Not for
many years has a Member of Parliament been regarded as having, as
such, any claim to a vacant judgeship, or, for that matter, to appointment as a Queen's Counsel. Any preferment must be based on professional standing rather than political affiliations. At most there may be
an occasional suspicion that in a marginal case politics may have
tipped the balance.
Another feature of the past that has disappeared is the appointment
to the Court of Appeal or House of Lords of anyone who has not first
become a High Court judge. I do not say that such leaps have become
impossible; but the climate of opinion makes them improbable. A few
years on the High Court Bench may do much to demonstrate the
suitability (or unsuitability) of a judge for a seat in the Court of
Appeal; and those few years are also likely to give greater understanding and depth to the exercise of the appellate function. Nor has the
appointment of academic lawyers to the Bench come any nearer. As a
former president of the Society of Public Teachers of Law (which
roughly corresponds to the Association of American Law Schools), I
suppose that I am about the nearest approach to an academic lawyer
on the English Bench. But my road to the Bench, like everyone else's,
was through practice at the Bar. That is now the only road. A modern
development, introduced by the Courts Act 1971, is that many senior
Queen's Counsel are now appointed to sit as Deputy High Court
judges once or twice a year, for two, three or four weeks at a time.
The primary object is to make inroads on the backlog of cases waiting
to be heard; but a valuable secondary consequence is that the process
is usually revealing about the silk's suitability for appointment to the
Bench.
I turn from the Bench as a goal to the Bench as a guardian. Every
barrister realises that the judges play a large part in whatever standing
and recognition he has, especially as the numbers of judges and practising barristers are so relatively small. The impact of counsel and
judge upon each other in court is also great. Except in serious criminal
cases and in defamation, for all practical purposes every case is decided by the judge alone, without any jury. On appeal, there are no
briefs in your sense of the word. The whole forensic process, both at
trial and on appeal, is one of oral communication between counsel
and judge. All is direct, man to man, or woman to woman, or as the
case may be. In the bound and rebound of ideas between Bench and
Bar, the stress of argument is wonderfully revealing.
There are no formal time limits, even on appeal. Chief Justice
Hughes, I am told, was so punctilious a time-keeper in your Supreme
Court that he was able to stop a Wall Street lawyer in the middle of
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BARRISTERS AND JUDGES
the word "If." In England, the courts subscribe to the proposition that
one of the first duties of a judge is to make it disagreeable for counsel
to talk nonsense; and usually the judges apply the skills that they have
acquired in this process to prolixity as well, though their success is not
uniform. The Court of Appeal once vainly attempted to stem the flow
from a barrister notorious for his ability to make ten words do the
work of one. On and on he went, and finally, as he was going round
the course for the third time, he made a new complaint about the trial
judge: "And when I tried to put that point, my Lord, the judge
stopped me." The presiding judge saw his chance: "Tell us, Mr.
Smith, just how did he do that?" The reply was prompt and indignant: "By falsely pretending to be in my favour, my Lord." In another
appeal, counsel began to cite a number of cases in support of elementary propositions of law. Soon the presiding judge gently observed:
"Mr. Jones, I think that you may assume that this court has some
knowledge of the law." "My Lord," replied Mr. Jones, grimly, "that
was the mistake that I made in the court below."
6. The Judgment of Solicitors
In England, no barrister can appear in court as counsel unless he
has been instructed by a solicitor. The livelihood of a barrister is thus
wholly dependent upon solicitors and what they think of him. Solicitors are the judges of the Bar; they brief the good and ignore the bad.
The judgment of forensic ability is made not by laymen, who too often
think that storm and fury make good advocacy, even when empty of
content. It is made by solicitors, lawyers who are skilled in litigation
and well accustomed to appreciating quiet and effective competence,
and to discounting froth, however impressively uttered. They can
recognise the budding skill of a beginner, perhaps on the other side in
a case, who, though losing, proves to be resourceful and tenacious;
and for the next case that they have of the same kind, they may well
brief that beginner in preference to counsel whose win was unimpressive. From counsel's point of view, the ultimate triumph may lie not
in winning the case but in winning the solicitors on the other side for
future cases. In a word, counsel are the subject of continuous assessment by the general body of solicitors, all of whom have the commendable aim of getting for their clients the best possible value for
money.
CONCLUSION
Those, then, are my six major factors. I have set out my prelude,
stated my theme, and deployed my six variations; and so I come to my
coda. From the outset, a barrister is enveloped in a system of continuous professional assessment, by his pupil-master, by his fellows, by
judges, and by solicitors. His progress depends on their judgment of
how good a barrister he is. Politics play little or no part, whether
party politics or the politics of any bar association or other body; nor
FORDHAM LAW REVIEW
do the views of laymen count. The whole atmosphere is professional.
The barrister is set on the right lines by his pupillage, sustained by the
chambers system and the fellowship of his Inn, continuously assessed,
aided and corrected by solicitors, his fellows and the judges, and
encouraged throughout by the goal of silk and ultimately the Bench. Is
it any wonder, then, that, set in this climate, so many barristers attain
and maintain high standards? Instead, it would be surprising if they
did not.
There are, of course, failures, quite apart from those who are found
to lack the qualities necessary for practice at the Bar, and who,
weeded out by the system, depart for other fields of endeavour. There
are a few whom no system will tame, just as there are many who in
any event would instinctively go right. But for those at neither extreme, the system does much-very much-to bring out the best and
discourage the worst. It is also very pleasant. The barrister's Inn is a
social club in which the real brotherhood of the law flourishes. This
emphasises one of the defects of the system. Today, a quarter of the
Bar mainly practise outside London; and for them, the Inns, from
geographical necessity, can provide so little. There are other defects,
too; I certainly am not suggesting that the rose has no thorn. But even
after allowing for all qualifications and exceptions and blemishes, I
assert that the system as a whole plays a very large part in maintaining
high standards at the English Bar.
Perhaps I may end by saying something of my own Inn. When a
Bencher dies, the great bell of Lincoln's Inn, brought back from Cadiz
in 1596, is slowly tolled from 12:30 p.m. until 1:00 p.m. For many
years, barristers in the Inn, hearing the bell, have sent their clerks to
find out who it is that has been gathered to his fathers; and this
continues to this day. When the bell was still newly-hung in the
chapel, the great Dr. John Donne was Preacher to the Inn; he held
office from 1616 until 1622. In 1624 his Devotions Upon Emergent
Occasions was first published; and in it there is a well-known passage
which may have had its origin in the brotherhood of the law that
Donne found in the Inn. I like to take it as extending also to the
brotherhood of the law that knows no national boundaries. In modern
orthography it runs as follows:
No man is an island, entire of itself; every man is a piece of the
continent, a part of the main; if a clod be washed away by the sea,
Europe is the less, as well as if a promontory were, as well as if a
manor of thy friend's or of thine own were; any man's death
diminishes me, because I am involved in mankind; and therefore
never send to know for whom the bell tolls; it tolls for thee.